Chappell v. Proctor

16 S.C.L. 49

Opinion

The opinion of the Court was delivered by

Mn Justicá Johnson.

There can be no doubt that the first ground of the present motion would have been a good objection, if the defendant had taken advantage of it at the proper time and in the proper way; for it is necessary that the parties to a suit should be as certainly designated as may be conveniently practicable: but it is equally clear that the objection, in this case, came too late; for it is a well settled rule of practice, that a mistake in the name -of the plaintiff, can only be taken advantage of by plea in abatement; unless indeed, in cases where the contract given in evidence, differs from the name of the plaintiff, set forth in the declaration. But in this case, they correspond precisely: vide 3 Chitty on pleading, 256.

In the case of “ Ash and wife as, executors of Smith,” decided in Charleston, at Jan. term, 1823, it was determined, that since the statute, a note for the payment of money pre-suppps.es a good consideration, with or without the words “ value re® ceived;” and if this be correct, the note itself was sufficient evidence of a consideration.

The motion is refused. —

Johnson, JYott, Ilichardson^ Huger, Colcoclc and Gantt, Justices, concurred-.